Attorneys for Dua Lipa want a federal judge to toss out one of the two copyright lawsuits she’s facing over her smash hit song “Levitating,” saying plainly that the pop star “never heard” the songs she allegedly copied.
Five months after L. Russell Brown and Sandy Linzer accused Lipa of ripping off their 1979 song “Wiggle and Giggle All Night” and their 1980 song “Don Diablo,” Lipa’s lawyers said in a letter Tuesday (Aug. 30) that the accusers can’t show that Lipa and the other “Levitating” writers actually had “access” to those earlier songs – a make-or-break requirement for any copyright lawsuit.
The accusers claim their songs were widely available online and Lipa must have heard them, but her lawyers told the judge that’s not nearly enough.
“The complaint alleges defendants purportedly had access to ‘Wiggle’ and ‘Don Diablo’ because they both ‘can be found on popular streaming services’,” Lipa’s lead attorney Christine Lepera wrote. “However, there are many millions of musical recordings available on streaming services, and the mere availability of recordings on those services does not establish wide dissemination.”
Brown and Linzer’s case, filed March 4, is one of two lawsuits Lipa is facing over “Levitating” – a massive hit that spent 77 weeks on the Hot 100 and was named the No. 1 Hot 100 song of 2021. The other case, filed just days earlier, claims she lifted the song’s core hook from a 2015 song by a reggae band named Artikal Sound System.
Brown and Linzer’s accusations center on the melody that starts just a few seconds into “Levitating,” when Lipa begins singing, “If you wanna run away with me…” In their complaint, they called that portion of the song a “duplicate” of their own.
In Tuesday’s filing, Lipa’s attorneys begged to differ – arguing that the similarities between the two songs are merely “the result of the coincidental use of basic musical building blocks” that cannot be protected by copyright law.
The filing added that the judge “need not reach these matters” and instead could simply toss the case out given that the “Levitating” writers “never heard” the two earlier songs and never even had “access” to do so. In making that argument, they pointed out various flaws with Brown and Linzer’s theories for how Lipa and the other writers might have heard their songs.
“With respect to ‘Wiggle,’ the complaint merely alleges it achieved certain success in the Netherlands four decades ago,” Lipa’s lawyers wrote. “This does not establish ‘saturation,’ and there is no allegation that the songwriters of ‘Levitating’ were in the Netherlands—or, indeed, had even been born—at that time.”
On Wednesday, Brown and Linzer’s attorney, Jason T. Brown, told Billboard that he and his clients would be filing a “full rebuttal” to Dua Lipa’s attorneys later in the week. He said they “respectfully disagree with their interpretation of the law and their selective citation of the facts.”
“‘Don Diablo’ has had roughly 20 million listens on YouTube alone with thousands of listeners noting that ‘Levitating’ sounded like ‘Don Diablo’ well before this lawsuit was initiated,” Brown said. “We look forward to vindicating our clients’ rights in court and for some of these amazing artists of today to properly pay homage to the storied songwriters of the past.”
Lipa’s attorneys have not yet filed a similar motion in the case filed by Artikal Sound System, which remains at an earlier stage in the proceedings.
Read the entire letter from Dua Lipa’s attorney’s here:
